R v Hemraj [2002] NSWSC 149

New South Wales Supreme Court

CITATION : R v Hemraj [2002] NSWSC 149 FILE NUMBER(S) : SC 70083/2001 HEARING DATE(S) : 18/02/02, 20/02/02, 22/02/02, 26/02/02, 05/03/02 JUDGMENT DATE : 22 March 2002

PARTIES : Regina Sunil Dhiraj Hemraj JUDGMENT OF : Hidden J at 1

COUNSEL : B Smith - Crown R Toner SC - Accused SOLICITORS : Derek Lee (DPP) - Crown Crichton Browne Crossley - Accused CATCHWORDS : Criminal law: accused unfit to be tried - special hearing - murder - issue of mental illness. LEGISLATION CITED : Mental Health (Criminal Procedure) Act 1990 CASES CITED : The King v Porter (1936) 55 CLR 182 at 188 DECISION : Not guilty on the ground of mental illness.

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

HIDDEN J

Friday, 22 March, 2002

70083/2001 – REGINA v Sunil Dhiraj HEMRAJ

JUDGMENT 1 HIDDEN J: The accused, Sunil Dhiraj Hemraj, is charged with the murder of Michelle Danieletto at Mortdale on 23 October, 1996. Early last year a trial was embarked upon before Kirby J and a jury, but in the course of that trial he was found to be unfit to be tried: see the judgment of Kirby J of 14 March 2001. He remains unfit and the Attorney General has since directed, pursuant to s 18 of the Mental Health (Criminal Procedure) Act 1990, that a special hearing be conducted. The hearing has proceeded before me without a jury, pursuant to s 21A of the Act. I have a recent report of Dr Bruce Westmore, forensic psychiatrist, from which I am satisfied that, although he is unfit to be tried, the accused is capable of making an informed election under that section. 2 The accused and the deceased had lived together in an intimate relationship for about four years. He had been employed by the Westpac Bank but had resigned from that position in early September 1996. She worked with the Chase Manhattan Bank and was also undertaking a course of study. In the early evening of 23 October 1996 she was attacked in the home unit at Mortdale where they lived. She had been at home that day, studying. In the afternoon the two of them had gone to a bank at Hurstville, where the deceased had opened an account, and they had later returned to the home unit. 3 At about 6 pm the deceased was struck a number of times about the head with a hammer, and she died of those injuries about an hour later while being conveyed to St George Hospital. It is the Crown case that the accused was her assailant and that he had attacked her with the intent requisite for murder. It is sufficient to say that there is a substantial body of circumstantial evidence to that effect, although he has never made an unequivocal admission of responsibility. The Crown prosecutor has submitted that I would be satisfied beyond reasonable doubt that the elements of murder have been established, and senior counsel for the accused has made no submission to the contrary. I am so satisfied. 4 The central issue in this case is whether the accused is entitled to the special verdict of not guilty by reason of mental illness. In interviews with police, he maintained that he had been temporarily absent from the home unit when the deceased was attacked and that he had returned to find her in her injured condition. However, he had something curious to say to a police officer at the scene which could be interpreted as an admission and which, I think, is of some significance on the issue of mental illness. I shall return to that evidence. The effect of what he told several forensic psychiatrists, whose reports are in evidence, is that he has no recollection of attacking the deceased but is prepared to accept that he may have done. On the other hand, he can offer no explanation for doing so. I accept that he does not recall the killing. 5 On the issue of mental illness, there were tendered in the defence case the following reports:- · Three reports of Dr Westmore, who saw the accused in 1998, 2000 and 2002; · Two reports of Dr Brian Burke, who saw the accused a number of times in 1999 and 2000 and who had also treated him when he was admitted to the psychiatric unit at Bankstown Hospital on two occasions in 1998; · A report of Dr Richie Poulton, psychologist, who saw the accused in 2000. The Crown arranged for Dr CL Wong to see the accused in 2000. He provided four reports, two of them accompanied by brief supplementary reports. I also have the transcript of evidence given by Dr Wong and Dr Poulton in the trial before Kirby J. 6 It is apparent from the volume of this material that the defence has been the subject of careful scrutiny by those four experts. Dr Burke and Dr Poulton were not previously known to me, but I have been impressed by their careful analysis of the accused's mental state in comprehensive reports. Of course, Dr Westmore and Dr Wong are both well known and respected in the field of forensic psychiatry. 7 There is no need to recite the accused's background, except to observe that there is some history of mental illness in his extended family. In 1992 he was admitted to hospital following a suicide attempt, apparently the result of depression arising from what was seen to be his poor academic performance at school. Since his late teens he had used marijuana quite heavily. More importantly, there is evidence of a pattern of bizarre behaviour in 1996 suggesting that he was undergoing abnormal experiences and, in particular, entertaining paranoid delusions. This emerges from the transcript of the evidence at the trial before Kirby J of a number of his colleagues at the Westpac Bank, as well as a Federal police officer to whom he made a complaint of an entirely irrational nature in October of that year, a few weeks before the killing. 8 From the outset, Dr Burke and Dr Poulton concluded that at the time of the killing the accused was suffering from schizophrenia. Initially, Dr Westmore was uncertain of his diagnosis but he later concluded that he had a schizophrenic illness of a paranoid type, aggravated by his use of cannabis. In his earlier reports and in his evidence in the trial before Kirby J, Dr Wong was unpersuaded that he suffered from schizophrenia at the relevant time but in a recent report, after a careful review of all the material, he also arrived at that diagnosis. 9 However, that does not conclude the matter. It must also be established that that mental illness led to the killing of the deceased, on one or other of the bases expressed in the McNaghten Rules. As Dixon J (as he then was) put it in The King v Porter (1936) 55 CLR 182 at 188, the effect of the accused's mental illness must have been "to prevent him from knowing the physical nature of the act he was doing or of knowing that what he was doing was wrong." His Honour went on to explain (at 189-190) that what is meant by "wrong" in this context is "wrong having regard to the every day standards of reasonable people." The question whether the accused knew that what he was doing was wrong requires a consideration whether "through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure." 10 In May 2001 the accused was interviewed in custody by Dr Jeremy O'Dea, psychiatrist, and part of the history he supplied to that doctor is reproduced in Dr Wong's most recent report. The accused told Dr O'Dea that in early 1996, while working at the Westpac Bank, he came across some information concerning the finances of a wealthy customer of the bank. He told nobody about this information, but about a week later he saw a television news item to the effect that this person's affairs were being investigated. It appears that the accused thought that this investigation was the result of his discovery of the information, and he came to believe that he was under surveillance and that his house and telephone were bugged. It was because of this, he said, that he resigned from the bank. The stage was reached where he was hearing voices, which he could not identify but which told him to do things and appeared to understand his thoughts and feelings. He believed that in some way this person, or some organisation behind him, had "set him up" to commit the offence. 11 This material was influential in Dr Wong's ultimate conclusion that the accused was schizophrenic at the time of the killing. It seems that he had given a somewhat similar account to Dr Burke, although it had been less coherent. As Dr Burke understood it, the accused was saying that the deceased was "doing deals for big companies and powerful people" in her position at the Chase Manhattan Bank, that she was involved in a transaction which was under investigation, that "powerful figures" were also involved and that she was murdered "to prevent her revealing the details." Earlier in these reasons, I referred to a curious remark which the accused made to a police officer at the scene of the killing. When the officer asked him what had happened, the accused said, "You may as well lock me up now", and extended his arms as if he were about to be handcuffed. The officer asked, "Why? Did you do it?". The accused replied, "I can't say anything. Someone's got to be a scape goat." 12 What this conveys is that at the time of the killing the accused was suffering from delusions into which, in some ill-defined way, the deceased was incorporated such that he felt compelled to do away with her. There is no other way to explain this bizarre and brutal killing. Certainly, there is no evidence of any rational motive for it. While there is evidence that their relationship had not been without its difficulties, there is nothing to foreshadow violence of the order which he meted out on this occasion. I have referred to the fact that earlier that day the accused and the deceased had attended a bank. The bank officer who dealt with them observed that they appeared to be "getting on quite well." There is nothing to suggest any altercation between them before the attack and, on post mortem examination, no defence injuries were found on the deceased. All the evidence points to the attack having been sudden and, for her, entirely unexpected. 13 Dr Westmore, Dr Burke and Dr Wong all found that there was a link between the accused's mental illness and the killing. Dr Wong addressed the criteria established by the McNaghten Rules, concluding that the accused knew the nature and quality of his act but did not know that what he was doing was wrong. That is the view which I have formed on the whole of the evidence. Properly and responsibly, the Crown prosecutor conceded that the defence of mental illness is made out. 14 As senior counsel for the accused pointed out, this is a most tragic case, profoundly affecting the families of both the deceased and the accused. It is appropriate that I extend my deepest sympathy to the loved ones of Ms Danieletto. 15 I find the accused not guilty on the ground of mental illness. I shall consult the parties about the appropriate consequential order. **********